An assortment of all things interesting (and possibly useless) in the legal profession

Tuesday, October 27, 2009

Introducing the "Civil Gideon"

In 1963, the Supreme Court unanimously decided in Gideon v. Wainwright, 372 U.S. 335 (1963) that the Sixth Amendment gives all low-income defendants the right to counsel in criminal cases. A year later, the Court broached the issue of a similar right in civil cases claiming that "laymen cannot be expected to know how to protect their rights when dealing with practiced and carefully counseled adversaries.” See Brotherhood of R.R. Trainmen v. Virginia, 377 U.S. 1, 7 (1964). However, in 1981, it declared that indigent litigants do not have the right to court appointed counsel in cases involving the termination of parental rights. See Lassiter v. Department of Social Services,, 425 U.S. 18 (1981).

In the past decade, the movement towards establishing the right to counsel in civil cases has been gaining traction, and in 2006, the ABA issued a statement showing its support. Well, from the ABA's mouth to Governor Schwarzenegger's ears, and we get the first state law in California mandating legal representation for indigent civil litigants, otherwise known as the "Civil Gideon."
The big question here is where the money is coming from. According to the Wall Street Journal, court fees will be increased by a mere ten dollars, and the extra money will be used to fund the new law starting in 2011. Until then, the money will go to the courts so they can get back on their feet in the midst of the golden state's budget crisis.

In the Journal, Ted Frank argues that this law will flood the courts with unnecessary litigation. He claims that parents will be less likely to reach agreements in child custody cases, and landlords will be forced to litigate evictions. While I understand the drawback of added litigation, I've never found it to be particularly persuasive enough to override a law aimed at a greater level of fairness and justice. In most custody cases, an agreement is more likely reached when the party who can afford an attorney bullies the other party into signing something. As for eviction cases, I believe that at the end of a notice period, a landlord must file an eviction case with the court anyway to have the eviction legally recognized. Moreover, the American judicial system can be overwhelming, confusing and inevitably adversarial. While many civil parties successfully file suits pro se, I think it is fair to say that they often lack the knowledge and skills to successfully plead a case. I mean, if everyone can just represent themselves, then why are we spending so much money on law school?

The result is that many nonprofit organizations, such as Legal Aid, are swamped with cases and constantly turning people away. While Frank assumes that the people who are turned away must have meritless cases, I think the more likely conclusion is that these public interest organizations are simply losing a battle of supply and demand.

I do have my doubts about the funding, as well as California's ability to enforce this mandate while trying to revive its floundering economy. However, my initial reaction is hats off to the Terminator for boldly changing the course of civil litigation.

24 comments:

I completely agree with your analysis of Ted Frank's criticism of CA's Civil Gideon. The purpose of a court system is to level the playing field. Out of court settlements are good to the extent that the parties are already operating from a level playing; there, the court becomes redundant. But when settlements are happening because one party doesn't have proper representation while the other has the resources to hire competent counsel, settlements are not good; they don't reflect a fair outcome and court-based resolution is necessary. To assume, as Frank seems to do, that landlords and tenants operate from a level playing field, seems silly and unrealistic.

What bothers me about Frank and other tort-reform advocates is that they conflate the problems of access to justice and frivolous lawsuits. Yes, there are frivolous lawsuits. But not every lawsuit is frivolous. Tort-reform advocates seem to forget this latter point. Just because more people are given access to justice doesn't mean that these new entrants are going to bring frivolous lawsuits; the reason these people were left out of the justice was not because they had meritless claims. And conflating these problems doesn't help to solve either one. We shouldn't be attempting to solve the problem of frivolous lawsuits by keeping people out of the court system.

>>Well, from the ABA's mouth to Governor Schwarzenegger's ears, and we get the first state law in California mandating legal representation for indigent civil litigants, otherwise known as the "Civil Gideon.

The ABA is in truth the Liberal Bar Association. And it never ceases to amaze me that a state imploding in real time before everyone's eyes nevertheless has time for this. Talk about rearranging chairs on the deck of the Titanic.

As someone who was bankrupted by legal defense fees(in what I considered a frivolous lawsuit-brought by a former business associate determined to use his deep pockets to drive me from the marketplace), where the local court rules required that my business have an attorney, I can tell you that the system needs to be changed.

The problem I see with this is also the raise in court fees. For important cases, indigents can typically get assistance from legal clinics and law schools. In this respect, they do not have to pay counsel fees, but are nonetheless responsible for court costs, etc. Raising the price here, however small, seems likely to have a bad effect on these clinics who deal with a heavy caseload and the litigants themselves.

The main problem with Civil Gideon is that you will have indigent litigants whose decisions on whether and how to pursue their cases will not be constrained by financial considerations. This actually is going to create an UNeven playing field.

Realistically, if one party is indigent and the other has $10,000 in savings available to hire a lawyer, the party with the cash still has a very powerful economic incentive not to engage in unnecessary discovery, file vexatious motions, or avoid settlement in favor of a full-blown trial. As a practicing attorney myself, I can tell you that even people who can "afford" a lawyer still strongly prefer not to pay any more attorney's fees than are absolutely necessary. If Civil Gideon means handing ostensibly indigent parties a blank check with which they can turn every case into the Microsoft antitrust litigation, then it WILL dramatically increase the courts' workload. Moreover, such a move won't eliminate the perceived unfairness of the current system, but rather shift the advantage in favor of the party whose legal expenses are being subsidized. (I also don't see how a $10/case surcharge can possibly fund a program like this, but whatever.)

The better solution by far would be increased funding for legal services organizations. Properly funded, they can obtain legal representation for those indigents who have genuinely meritorious claims and defenses, while screening out or limiting assistance to those who don't. Unless you want to explode the system completely, both sides need to be operating under some kind of constraint that encourages them to settle their cases or at least narrow the scope of issues that need to be tried.

Thank you! I honestly commend California for introducing the legislation but delaying its effective start date until 2011. Right now, the money is going into the court system's general operating budget, which is definitely a step in the right direction. However, my concern lies with how long it will take the courts to get back to stable ground. Moreover, I don't know if stable ground is even the best state to be in to take on such a mandate. Maybe things would have been different if the Prop 13 vote had come out the other way, but in the midst of a recession, I just hope California can handle being the pioneer.

I think that for those being sued this is a good thing. However, it should be tied to a "you win the plaintiff pays the fees" program. Not the most fair but helps level the field toward a settlement... if you settle your fees are covered by the state and the plaintiff doesn't pay. Go to court - win, plaintiff pays your fees, lose - judge has the option to tag you as frivoulous in which case you become liable for fees (note no requirement for this) otherwise the state picks up the fee.

In other words I like the underlying idea but in a civil case I think there need to be ways to limit the state's liability. Other options I'm sure abound.

Indeed, "laymen cannot be expected to know how to protect their rights when dealing with practiced and carefully counseled adversaries," and there should therefore be a right to counsel in civil cases. There still is a problem however; this right only takes effect once cases reach trial. This means that in any dispute, one side can use their greater intelligence or knowledge to convince the other side to avoid formal legal proceedings, and thus take advantage of them. It is thus clear that in the interests of fairness and equality, all participants in any human interaction should have the right to counsel.

It is interesting that this new right will be paid for by increased court fees. Who will pay these? Obviously middle class litigants.

We were the victims of predatory civil litigation (eventually winning against a home builder who engaged in fraud, although we have never been paid). We are retired, middle class people. That we are not out on the street is just luck.

It is not only the poor who lack access to adequate legal representation. We had to fire one lawyer who was an outright thief. We won after 4 years by doing all of the research, formulating all of the winning arguments, and writing all the substantive briefs. We then propped up our mouthpiece to speak our words in front of the judge. He could barely do that. Didn't stop him from billing, however.

Personally, I think they can work in conjunction with one another. I believe that by advocating for increased funding to the Legal Services Corporation, the primary financial source for Legal Aid, it will be easier to actually provide counsel in civil cases. However, if we just fund Legal Aid, there is no control over where the money is going. Also, because Legal Aid is currently drowning in the financial crisis, increased funding may still lead to many meritorious cases being turned away.